How Will Sackett v. EPA Affect Administrative Compliance Orders?

You know why public libraries are better than the Environmental Protection Agency?

When a book is overdue, you know what the fine will be. You know you will be charged. There's a comforting certainty to a library infraction.

Not so with the EPA, as Mike and Chantelle Sackett learned when they started to build their dream home on a plot of land near Priest Lake in Idaho.

In April and May of 2007, the Sacketts filled in part of that plot with dirt and rock in preparation for building a house. In November 2007, the EPA issued an administrative compliance order against the Sacketts. The compliance order alleged that the plot was a wetland subject to the Clean Water Act (CWA) and that the Sacketts violated the CWA by filling in their property without first obtaining a permit. The compliance order required the Sacketts to remove the fill material and restore the parcel to its original condition, or face civil and administrative penalties of up to $37,500 per day.

The Sacketts tried to challenge the EPA, and hired their own scientists to refute the claim and show that their landlocked plot in an already-developed neighborhood was not a wetland, reports Reason. When the EPA continued to assert CWA jurisdiction over the lands, but refused to grant the Sacketts a hearing, the couple sued in federal court.

The courts, of course, could not hear the Sacketts' case; they lacked subject-matter jurisdiction to review the compliance order because the EPA had not filed a lawsuit enforce the compliance order.

Damien Schiff, the attorney representing the Sacketts on behalf of the Pacific Legal Foundation, noted that the Sacketts can't get judicial review unless they ignore the compliance order, and even then "EPA still might just sit on its hands and let the possible fines pile up," reports Reason.

The EPA has the authority to issue an order requiring compliance CWA. If the cited person doesn't comply, the EPA must go to court if it wants to compel enforcement. The alleged violator does not have a right a hearing before EPA, and it cannot sue EPA. The violator's only option is to answer if the EPA goes to court, reports SCOTUSblog. That means that the EPA could bankrupt a person with $37,500 per day in accruing fines while it ponders its next move.

So what's a court to do?

In January, the Supreme Court heard oral arguments in Sackett v. EPA, and seemed to sympathize with the couple's plight. Justice Alito went so far as to suggest that most homeowners, upon hearing the facts of the case, "would say this kind of thing can't happen in the United States."

Legal Planet estimates that at least seven justices will side with the Sacketts in this matter. While the Court is expected to issue an opinion soon, the lingering question is the extent to which a Sackett win will impact administrative compliance orders.

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